Mitchell v. Martinet

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JAMES MARTIN MITCHELL, MD,
Plaintiff/Appellant,

v.

TODD MARTINET, as an individual and in his official capacity as police
officer employed by the City of Flagstaff; RYAN DARR, as an individual
and in his capacity as police officer employed by the City of Flagstaff;
JONATHAN MOSHER, as an individual and in his official capacity as
Deputy Coconino County Attorney; BRYAN SHEA, as an individual and
in his official capacity as Deputy Coconino County Attorney; AMMON
BARKER, as an individual and in his official capacity as Deputy Coconino
County Attorney; PHILIP JAY MCCARTHY, as a private party state actor;
MARY S. SMITH RN, as a private party state actor; MATTHEW L.
SMITH, as a private party state actor; ANDREW N. SMITH, as a private
party actor; SOPHIA L. SMITH, as a private party state actor; KARA
MCALISTER, as an individual and in her capacity as probation officer;
STACY KRUEGER, as an individual and in her capacity as Deputy
Coconino County Attorney; WILLIAM RING, in his official capacity as
Coconino County Attorney; DAN MUSSELMAN, in his official capacity
as Police Chief City of Flagstaff; THE COUNTY OF COCONINO, a
political subdivision of the State of Arizona; THE CITY OF FLAGSTAFF, a
political subdivision of the State of Arizona, Defendants/Appellees.

No. 1 CA-CV 25-0079
FILED 11-19-2025

Appeal from the Superior Court in Coconino County
No. S0300CV202400376
The Honorable Brent Davidson Harris, Judge Pro Tem, (Retired)

AFFIRMED
 COUNSEL

James Martin Mitchell, Phoenix
Plaintiff/Appellant

Broening Oberg Woods & Wilson, P.C., Phoenix
By Donald Wilson, Jr., Kelley M. Jancaitis
Counsel for Defendant/Appellee Phillip Jay McCarthy

MEMORANDUM DECISION

Judge Andrew J. Becke delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge Michael J. Brown joined.

B E C K E, Judge:

¶1 James Martin Mitchell appeals the superior court’s dismissal
of his claims against sixteen defendants. For reasons that follow, we affirm.

FACTUAL1 AND PROCEDURAL HISTORY

¶2 On June 6, 2024, Mitchell filed a complaint in superior court
asserting five 42 U.S.C. § 1983 claims against various defendants including
the Flagstaff police chief, two Flagstaff police officers, five Deputy
Coconino County Attorneys, one probation officer, the County of
Coconino, the City of Flagstaff, his former wife and their three children
(“the Smiths”), and Philip Jay McCarthy, the Smiths’ attorney.

¶3 The complaint arises from Mitchell’s contentious relationship
with his former wife, specifically when she hired McCarthy and sought an
order of protection against Mitchell. McCarthy, on behalf of the Smiths,
filed a police report and testified in court that Mitchell was stalking them.
Based on this testimony, Flagstaff police investigated Mitchell and
eventually indicted him on various charges including felony stalking.

1 In reviewing the dismissal of a complaint under Arizona Rule of Civil

Procedure (“Rule”) 12(b)(6), we “assume the truth of all well-pleaded
factual allegations and indulge all reasonable inferences from those facts.”
Coleman v. City of Mesa, 230 Ariz. 352, 355–56, ¶¶ 7, 9 (2012).

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Although the felony stalking charge was dismissed before trial, Mitchell
accepted a plea agreement on the other charges.

¶4 In his complaint, Mitchell first alleged the Coconino County
Attorneys participated in “malicious prosecution” and deprived him of due
process when they “concealed evidence” that McCarthy and the Smiths
“lied under oath” while seeking a protective order against him. Mitchell’s
second claim was asserted against all defendants and alleged they deprived
him of due process and “made an unreasonable seizure of [his] personal
property.” He also specifically alleged Coconino County and Flagstaff
failed “to adopt clear policies” and properly train their police officers,
detectives, attorneys, and probation officers.

¶5 Mitchell’s third and fourth claims were asserted against the
probation officer and the two police officers involved in his criminal case.
He alleged the probation officer knowingly made false statements in her
presentence probation report and conspired with the Coconino County
Attorney’s Office to “conceal exculpatory evidence resulting in the denial
of due process.” Mitchell also alleged the police officers tampered with
evidence, failed to “thoroughly investigate [] false allegations,” “failed to
perform [their] duties in a professional manner,” “misled the grand jury,”
and “covered up the misconduct.” Mitchell’s fifth and final claim alleged
the Smiths and McCarthy knowingly made false statements in superior
court and in a police report to secure a protective order.

¶6 Mitchell served the summons and complaint on the Smiths
through a private process server on June 24th. The Smiths filed an answer
on July 12th, setting forth their denials and affirmative defenses.

¶7 On August 13th2, Presiding Judge Reed issued an
administrative order modifying case assignments, effective October 1st.
The order explained “any matters pending a ruling or under advisement,
[would] be completed by the current judge presiding over that case prior to

2 We grant McCarthy’s and the Smiths’ request to take judicial notice of the

public administrative order restructuring case assignments in Coconino
superior court. See Coconino Superior Court Administrative Order No.
2024-16 (August 13, 2024); Ariz. R. Evid. 201(b)(2) (“The court may
judicially notice a fact that is not subject to reasonable dispute because it . . .
can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.”).

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transferring the case.” The order reassigned Mitchell’s civil case from Judge
Fridlund-Horne to Judge Harris.

¶8 On September 7th, Mitchell moved for a 60-day extension to
serve the remaining 12 defendants because he had “financial hardship” and
was “without funds to use a private process server.” Mitchell stated he
would “request that the [d]efendants accept service.” Mitchell made no
further efforts to serve the other defendants.

¶9 On October 28th, Judge Harris denied Mitchell’s motion and
dismissed all non-served defendants because Mitchell failed to state a cause
for his delay and failed to seek waivers of acceptance of service. Mitchell
appealed this order, but we dismissed his appeal because the order was
neither final nor did it contain Rule 54(b) finality language. Mitchell then
petitioned this court for special action relief, but we declined jurisdiction.

¶10 McCarthy accepted service under Rule 4(f)(2) and moved to
dismiss Mitchell’s complaint under Rule 12(b)(6). McCarthy argued the
case abated because Mitchell had filed an action3 in the superior court one
month earlier alleging “the same facts and circumstances between the same
parties and [sought] the same universe of damages.” The Smiths joined
McCarthy’s motion to dismiss.

¶11 McCarthy moved to dismiss the first action on the grounds
that “reporting misconduct to law enforcement and making statements in
furtherance of a judicial proceeding to obtain an order of protection — is
absolutely privileged from suit.”

¶12 Mitchell responded and argued his claim should not be
dismissed because the causes of action in the two cases were different.
Mitchell also argued McCarthy and the Smiths were “witness conspirators”
and could not be granted “absolute immunity protections” from “lying
under oath . . . and filing a fraudulent police report.” The superior court
granted the motion to dismiss after “finding good cause” and dismissed all
claims against McCarthy and the Smiths with prejudice.

¶13 Mitchell timely appealed and moved for a change of judge for
cause on the same day. Mitchell’s motion alleged Judge Harris violated
procedural due process when he “interjected himself into the proceedings”
before Judge Fridlund-Horne “recused herself.” Presiding Judge Reed
denied Mitchell’s motion, stating all civil matters were transferred to Judge

3 McCarthy moved the superior court to take judicial notice of the prior

case’s records.

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Harris on October 1st. The superior court entered a final judgment with
Rule 54(c) language. Except as discussed below, we have jurisdiction under
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1), -2101(A)(1).

DISCUSSION

¶14 The Smiths did not file an answering brief. Because no
“debatable question is raised by the appeal,” we decline to treat that failure
as a concession of reversible error. Navarro v. State, 32 Ariz. 119, 120 (1927).

I. Judge Fridlund-Horne Did Not Deny Mitchell a Fair
Adjudication.

¶15 Mitchell first argues he was denied “fair adjudication” when
Judge Fridlund-Horne failed to “timely recuse herself” and failed to rule on
pending motions after issuance of Administrative Order No. 2024-16.

¶16 As an initial matter, Mitchell fails to identify any grounds
requiring Judge Fridlund-Horne’s recusal. This case was transferred to
Judge Harris under the superior court’s periodic rotation of judicial
calendars. See Coconino Superior Court Administrative Order No. 2024-16
(August 13, 2024). As for ruling on pending motions, the only motion filed
before the administrative transfer of the case was Mitchell’s motion for
extension of time to serve the remaining defendants. No response to the
motion had been filed as of October 1st, so it is unclear whether the superior
court treated it as pending.

¶17 Judge Harris ruled on Mitchell’s motion on October 28th.
Mitchell fails to show how this denied him fair adjudication or prejudiced
him in any way. Because Mitchell does not provide any legal citations nor
develop his legal argument on appeal, he has waived this argument. See
ARCAP 13; Ramos v. Nichols, 252 Ariz. 519, 522, ¶ 8 (App. 2022) (waiving
issues on appeal for failure to comply with ARCAP 13).

II. We Lack Jurisdiction to Consider Mitchell’s Arguments on His
Denied Motion for a Change of Judge.

¶18 Mitchell next argues he never received notice of the case’s
reassignment and only became aware of reassignment after the case was
dismissed, denying him the opportunity to “remove Judge Harris as a
matter of right.”

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¶19 The appeal before us is an appeal of Judge Harris’s January 7,
2025 order granting McCarthy’s and the Smiths’ motion to dismiss
Mitchell’s claims. Mitchell moved for a change of judge for cause on
January 9th. Presiding Judge Reed issued an order on January 17th denying
his motion for failure to state a claim. Because we lack jurisdiction over
matters not contained in the present notice of appeal, we will not consider
Mitchell’s arguments on the same. A.R.S. § 12-120.21(A); Lee v. Lee, 133 Ariz.
118, 124 (App. 1982).

III. Mitchell Was Not Prejudiced by the Rule 4(i) Dismissal.

¶20 Mitchell also argues the superior court’s dismissal of the
unserved defendants is “invalidate[d]” because the court never provided
notice of the dismissal per Rule 4(i). We review the interpretation and
application of procedural rules de novo. Fen Investments, LLC v. Fonzi Food, 257 Ariz. 533, 539, ¶ 22 (App. 2024).

¶21 Rule 4(i) states:

If a defendant is not served with process within 90 days after
the complaint is filed, the court—on motion, or on its own
after notice to the plaintiff—must dismiss the action without
prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause
for the failure, the court must extend the time for service for
an appropriate period.

¶22 Mitchell argues Rule 4(i) requires superior courts to “provide
notice to a plaintiff before dismissal for lack of service.” And because “[he]
never received notice that dismissal was being considered,” the court’s
dismissal was procedurally defective.

¶23 Although Rule 4(i) does require the superior court to provide
notice for a sua sponte dismissal for failure to timely serve defendants,
Mitchell was clearly on notice of the possibility of dismissal and was aware
of the possible consequences of missing the 90-day deadline because he
filed a motion for extension of time to serve.

¶24 To justify reversal, “there must not only be error, but the error
must have been prejudicial to the substantial rights of the party.” Creach v.
Angulo, 189 Ariz. 212, 214 (1997). And we do not presume such prejudice
but rather it “must appear from the record.” Id. at 215; Ariz. R. Civ. P. 61
(“Unless justice requires otherwise, an error . . . by the court . . . is not
grounds for . . . vacating, modifying, or otherwise disturbing a judgment or

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order. At every stage of the proceeding, the court must disregard all errors
and defects that do not affect any party’s substantial rights.”).

¶25 Mitchell filed his complaint on June 6, 2024 and had until
September 4, 2024 to serve all sixteen defendants. Rule 4(i). Mitchell
personally served four defendants by private process server on June 24th.
On September 7th, three days after the deadline to serve, Mitchell moved
for a 60-day extension to serve the remaining defendants. When Mitchell
moved for an extension of time to serve defendants, he was on notice that
his complaint against those unserved defendants could be dismissed.

¶26 Furthermore, Mitchell could have served the remaining
defendants before the superior court ruled on his motion for extension—
almost 50 days later—but he made no attempts to do so. And even if the
court provided notice before dismissing the case, it denied Mitchell’s
motion for extension of time. The action would be dismissed regardless of
what Mitchell did after receiving notice of the court’s intent of dismissal.
Accordingly, any error committed by the court was harmless and Mitchell’s
rights were not prejudiced.

IV. Mitchell Fails to Establish Judicial Bias.

¶27 Mitchell next contends that because Judge Harris did not
disclose his previous employment as chief prosecutor for the City of
Flagstaff, he violated Mitchell’s due process rights and Arizona Code of
Judicial Conduct Rule 2.11. Mitchell does not explain why this previous
employment would be a conflict of interest nor does he explain how it is
evidence of judicial bias.

¶28 Judicial officers are presumed to be fair and impartial, and a
party has the burden of rebutting that presumption by a preponderance of
the evidence. Costa v. Mackey, 227 Ariz. 565, 571, ¶ 12 (App. 2011). Mitchell
has failed to meet that burden. Additionally, because Mitchell failed to raise
this issue before the superior court, he has waived the issue on appeal.
Cont'l Lighting & Contracting, Inc. v. Premier Grading & Utils., LLC, 227 Ariz.
382, 386, ¶ 12 (App. 2011).

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V. Mitchell’s Claim Is Barred on Grounds of Abatement and Claim
Preclusion.

¶29 Lastly, Mitchell argues McCarthy’s and the Smiths’ motion to
dismiss was improperly granted because they “do not have absolute
immunity as witness conspirators” and “are not protected by the previous
action” Mitchell filed in superior court. Much of Mitchell’s opening brief
discusses immunity as it relates to officials claiming immunity under 42
U.S.C. § 1983 and how McCarthy and the Smiths cannot use “immunity” as
a defense to his allegations.

¶30 Mitchell confuses the legal issues. His complaint was
dismissed on abatement and claim preclusion grounds, not because the
superior court granted McCarthy and the Smiths absolute immunity from
prosecution. Nevertheless, we review de novo the dismissal of a complaint
under Rule 12(b)(6). Coleman, 230 Ariz. at 355, ¶ 7.

¶31 When two actions “between the same parties and for the same
cause” are filed in the same jurisdiction, the later-filed action abates. Rohan
Mgmt., Inc. v. Jantzen in & for Cnty. of Mohave, 246 Ariz. 168, 173, ¶ 13 (App.
2019) (noting same parties and same cause “ordinarily is . . . [when] the two
actions present a substantial identity as to parties, subject matter, issues
involved, and relief demanded”).

¶32 Similarly, claim preclusion applies “when a former judgment
on the merits was rendered by a court of competent jurisdiction and the
matter now in issue between the same parties or their privities was, or
might have been, determined in the former action.” Hall v. Lalli, 194 Ariz.
54, 57, ¶ 7 (1999). “[T]here must be a final judgment on the merits[] and [] a
common ‘identity of the parties, the capacity in which they appear, the
subject matter, and the cause of action.’” Matusik v. Ariz. Pub. Serv. Co., 141
Ariz. 1, 3 (App. 1984) (quoting El Paso Nat. Gas Co. v. State, 123 Ariz. 219,
222 (1979)).

¶33 In their motion to dismiss, McCarthy and the Smiths asked
the superior court to take judicial notice of Mitchell’s first action filed in
May 2024 and to dismiss Mitchell’s second action on abatement and claim
preclusion grounds. The court granted the motion to dismiss after
reviewing McCarthy and the Smiths’ motion and found good cause to
dismiss. While we do not have records of the first action in the record on
appeal, we presume documents not included in the appellate record
support the superior court’s ruling. Myrick v. Maloney, 235 Ariz. 491, 495, ¶
11 (App. 2014).

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¶34 If Mitchell wished to contest the dismissal of his first action
based on the application of absolute immunity, he had to timely appeal that
dismissal. Therefore, Mitchell has failed to show error.

CONCLUSION

¶35 We affirm the superior court’s ruling. As the successful party
on appeal, McCarthy is entitled to recover taxable costs upon compliance
with ARCAP 21. See A.R.S. § 12-342(A).

MATTHEW J. MARTIN • Clerk of the Court
FILED: JT

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